(Paul’s) Post One, Part Two: Making Printers! And then Getting Sued! (3D Systems v. Formlabs)

This post is an adjunct to my inaugural post, in which I explained why the expiry of some of the original Selective Laser Sintering (SLS) and Fused Deposition Modeling (FDM) patents is leading to a new wave of low-cost 3D printing solutions.

One technology I didn’t mention is stereolithography (SLA), the first major rapid prototyping technology invented back in the 1980s. (I also didn’t mention Three-Dimensional Printing or 3DP, developed by MIT, the original patent for which expired in 2010.) Stereolithography is a technique generally involving the use of an ultraviolet light and a liquid photopolymer, and was first patented by Charles W. Hull (patent filed 1984, issued 1986; and expired back in 2004). Hull went on to found 3D Systems (who you likely know, or may remember from Post I, Part I in the context of the University of Texas SLS patents) to commercialize the SLA technique. Charles Hull is still with 3D Systems and is apparently still inventing and patenting (for example).

And this all brings us to the recent lawsuit brought by 3D Systems against Formlabs and Kickstarter for infringement of a 3D Systems stereolithography patent. In brief, Formlabs has raised almost $3 million for its Form 1 printer through the crowd-funding platform Kickstarter. The Form 1 Kickstarter page proudly states that it is a low-cost stereolithography (the “gold standard”) printer. According to Formlabs:

After a great deal of research, engineering, and experimentation, we’ve figured out how to do it at a much, much lower cost, making this premium technology available to everyone.

The issue is that while the original U.S. SLA patent (US 4,575,330) expired years ago, 3D systems never stopped patenting improvements. (A brief aside about patent numbers – I can’t believe that, some historical hiccups aside, these numbers actually reflect the number of patents issued by the USPTO alone! But they do. Ten million, ho!)

It is 3D Systems’ patent US 5,597,520, Simultaneous Multiple Layer Curing in Stereolithography, issued back in 1997 and listing Hull as one of the inventors, that 3D Systems is claiming Formlabs and Kickstarter infringe.

There are many interesting aspects of this claim that we’ll dig into on this blog as the matter progresses. In spite of the lawsuit, Formlabs is pushing ahead with an April launch. (Claiming against Kickstarter, not just Formlabs, is particularly noteworthy. We’ll definitely be talking about 3D printing and direct vs. indirect infringement.)

But, for now I just want to focus on one element: the expiry of original patents governing 3D printing technologies does not necessarily mean the coast is now clear for low-cost 3D printers. That’s really significant for those who believe that a golden age of low-cost 3D printing is just beginning.

This all speaks to the core of the debate between those who believe that patents have held back 3D printing technology and those who believe that patents have really incentivized innovation by those who originally developed the technologies, like 3D Systems. It also relates to the debate between Richard Posner and Qualcomm’s Donald Rosenberg that I posted yesterday.

In an oft-cited article from 1991, “Standing on the Shoulders of Giants: Cumulative Research and the Patent Law,” Suzanne Scotchmer notes the problem of incremental and cumulative improvements – the issue is to figure out how we “reward early innovators fully for the technological foundation they provide… [and] reward later innovators adequately for their improvements and new products as well.” As Scotchmer says, it often isn’t the first invention that is the commercial success, but the improvements and the cumulative technologies that turn the big profits, which serves to compound the incentives problem. It is a problem that we still haven’t solved, regardless of whether we’re talking about smartphones, computers, or 3D printers. In fact, those subsequent improvements are often what make a product affordable and therefore marketable.

An additional thought is this: In the case of 3D printing, low-cost widespread adoption has the potential to actually transform the use of the technology itself. Rather than merely being a method of rapid prototyping for large firms, 3D printing suddenly has ordinary consumer applications, implications for entrepreneurship and the potential to maybe even to impact the global economy for labour and capital investment. It’s not just about the new printers being cheaper – it’s about them meaning something completely different to the world.

So should inventors of ‘improvements’ be granted the same monopolies on using or licensing their inventions, including the right to exclude others? Do the numerous improvement patents on FDM, SLS and SLA over the years mean that low-cost 3D printing will necessarily lag decades behind the latest technological advancements? After all, 3D Systems only launched its first below-$10,000 in 2009, in the middle of the patent expiry firestorm. Maybe that’s their right as innovators though. Is there any valid argument that the low-cost 3D printing revolution could or should have happened sooner?

I don’t have easy answers, but I’m curious to hear thoughts.

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